July 19, 2010 | 10:26 am

The burqa ban: a legal perspective

Posted by Brad A. Greenberg

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Last week, I discussed France’s burqa ban. Today, law professors discuss it:

John Yoo: My bet if that the law were written in the way that the French have done it, it might have a chance. As I understand it, the French law does not mention or ban burqas specifically. It prohibits people from wearing masks in public, with certain exceptions for costumes (this being France, where people wander the streets of Paris eating eclairs and dressed up as characters in Dangerous Liasions, I suppose). If a law like that were passed in the US, it would be neutral toward religion on its face, as opposed to a law—like one that banned animal sacrifices, but with an exception for killing animals to eat them—that obviously targeted religion (that too, was another Supreme Court case).

Richard Epstein: Ban the Burqa? Should that be a cause or a concern? The issue is indeed, tough, as Peter Robinson says. And Reynolds v. United States is the worst place to start in thinking about it. Reynolds had to address the extent to which a government ban on polygamy could be imposed consistent with the view that Congress could make no law prohibiting the free exercise of religion. The presumption is thereby set in favor of religious liberty. The question is what can overcome it. Killing third persons is easy, because that prohibition is part of the standard definitions of freedom, which cover only those actions that do not threatened the lives and property of others. Change that rule and the religious autocrat puts us all in the position of kill or be killed. But polygamy threatens no such risk. Within the libertarian calculus the most obvious source of harm is the offense that others take of the practice, and that type of harm rates very low on the scale of public justifications to intervene because it allows worked-up majorities to gain their way by their common sense of indignation. So we want something more…

To see the rest of Epstein and Yoo’s comments at Ricochet, hide the member comments so only the contributors’ show up. More from Martha Nussbaum at the Opinionator blog.

(Hat tip: Above the Law)